IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs October 1, 2013

MICHAEL MARTIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 07-06810 John T. Fowlkes, Jr., Judge

No. W2012-01678-CCA-R3-PC - Filed April 11, 2014

The Petitioner, Michael Martin, appeals the Shelby County Criminal Court’s denial of his

petition for post-conviction relief from his 2009 convictions for attempt to commit second

degree murder, aggravated assault, and violating an order of protection and his effective

eighteen-year, eleven-month, and twenty-nine-day sentence. The Petitioner contends that he

received the ineffective assistance of counsel because counsel (1) failed to interview and

present a witness at the trial, (2) failed to object contemporaneously to the admission of the

narrative portion of the order of protection, and (3) failed to include the transcript of the

motion for a new trial hearing in the appellate record. We affirm the judgment of the trial

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JERRY L. SMITH and

NORMA MCGEE OGLE, JJ., joined.

Warren Patrick Campbell, Memphis, Tennessee, for the appellant, Michael Martin.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;

Amy P. Weirich, District Attorney General; and Alycia Carter Peoples, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

This case arises from the Petitioner’s stabbing his estranged wife. This court

summarized the facts of the case in the appeal of the Petitioner’s conviction:

At trial, the victim testified that she was the defendant’s wife and had

known him “[a]ll [her] life.” She began dating the defendant in 2004, and the
two were married in November 2005. A year and a half later, the victim

moved out because she was tired of the defendant’s “[a]busive, arguing and

controlling” behavior and went to live with her grandparents, James and

Barbara Watson. After she moved out, the victim and the defendant were

“back and forth” with regard to the future of their relationship, and she spent

the night with him from time to time. However, in January 2007, the victim

obtained an order of protection against the defendant because “[h]e was always

calling . . . and following [her] different places.” Even after the protection

order, the victim and the defendant continued to contact each other and were

occasionally romantically involved, but eventually the victim decided that “it

was going to be a repeated cycle of doing the same stuff over and over again

[and] wanted to be through with it.”

On May 17, 2007, the defendant called the victim several times,

questioning her about whether she was dating anyone and threatening, “I can

get you if I want you[.]” When the victim left her grandparents’ house with

a girlfriend around 6:00 p.m. that evening, she noticed a suspicious car

following them that she assumed was driven by the defendant. She had her

friend take her home and, once she was out of the defendant’s sight, went to

a neighbor’s house and waited until her grandparents came home around 9:00

p.m. The defendant began repeatedly calling her as soon as she got home,

asking where she had been and why she would not return his calls. The victim

eventually turned off the ringer on the phone.

Around midnight, the defendant “c[a]me beating on the door asking

could he come in.” The victim’s grandfather let the defendant in and started

talking to him. The victim was nearby but was not paying attention to what the

defendant was saying because she “didn’t want to hear it.” After a few

minutes, the defendant went to the restroom and, about five minutes after he

returned, he “grabbed [the victim] and just went to sticking [her].” The victim

did not see the defendant with a knife or anything sharp, but she knew that he

frequently carried a pocketknife with a three- or four-inch blade. During the

altercation, the victim’s grandparents ended up on the floor. The defendant

then ran outside, leaving the front door open. When the victim realized that

she had been stabbed, she had her grandfather take her to the hospital where

she was treated and released. She had one stab wound to her left breast, two

to her left side, and one toward the top of her head. The next day, the

defendant called the victim and apologized.

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The victim testified that she believed the defendant came to her

grandparents’ house that night with the intention of hurting her because she

“could hear it in his voice [that] he was up to no good.” She noted that the

defendant’s facial expression was “angry,” which made her feel “scared.”

Michael Triplett, records keeper for the Shelby County General

Sessions Criminal Court, testified that the victim petitioned the court for an

order of protection against the defendant on December 29, 2006. As the

factual basis for the petition, the victim alleged that the defendant “accused her

of cheating” and “hit her in the face with a closed fist; hit her in the nose,

which caused her nose to spread and eye to blacken.” She also alleged that the

defendant threatened that the police could not stop him from getting to her and

that “[i]f he gets locked up, he will be plotting on how he is going to get her.”

The victim further alleged that the defendant hit her in the head with a gun on

December 13, 2006. The court issued an ex parte order, and the defendant was

informed that a hearing would be held in two weeks. The defendant and the

victim both appeared at the hearing on January 16, 2007, and a final order of

protection was entered directing the defendant to stay away from the victim.

Barbara Watson, the victim’s grandmother, testified the defendant came

to their house the night of the incident around midnight wanting to talk to her

and Mr. Watson about the defendant’s relationship with the victim. Mr.

Watson let the defendant in the house, and the three of them sat down in the

kitchen and began to talk. At some point, the defendant went to the bathroom

and, when he returned, stood in the doorway into the kitchen. The defendant

said a few more words and then said, “‘And you’” and lunged at the victim.

Mrs. Watson stood up to stop the defendant from hitting the victim, but her

chair tipped over and she fell to the floor bruising her arm. Mr. Watson tried

to keep her from falling, but somehow fell himself. Mrs. Watson saw the

defendant and the victim “tussling together,” then the defendant left the house.

On cross-examination, Mrs. Watson acknowledged that the defendant

did not shout or behave unruly during their conversation while seated at the

kitchen table. Mrs. Watson observed that the victim did not say anything to

the defendant prior to him lunging at her.

James Watson, the victim’s grandfather, testified that on the night of the

incident the defendant arrived at their house around midnight, saying that he

needed to talk to him and Mrs. Watson. Mr. Watson let the defendant in the

house, and the three of them sat at the kitchen table and discussed the

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relationship between the victim and the defendant. At some point, the victim

entered the kitchen but would not sit down at the table when requested to by

the defendant. Mr. Watson observed that the defendant looked “upset” and

like “[s]omething was on his mind.” The defendant left the kitchen to use the

restroom and, when he returned, did not sit down. The defendant said a few

words, then said to the victim, “‘And you,’ and he grabbed her.” It appeared

to Mr. Watson that the defendant began hitting the victim, and when Mr.

Watson saw this, he started to get up from the table, but the defendant’s boot

pushed Mr. Watson’s leg and he fell to the floor. The defendant ran out of the

house, and Mr. Watson saw that the victim had been stabbed in the head and

side. A few days after the incident, while Mr. Watson was at the police station

making a report, the defendant called him and apologized.

On cross-examination, Mr. Watson acknowledged that the defendant

never yelled at them during their conversation but did somewhat raise his voice

when he said, “‘And you’” to the victim before the attack.

Officer Marcus Lee with the Memphis Police Department testified that

he was dispatched to Methodist South Hospital to investigate the stabbing of

the victim. The victim advised Officer Lee that the defendant had stabbed her.

He recalled that the victim told him that the defendant had been calling her to

meet and that she finally agreed to talk to him. She said that they were talking

in the kitchen, then the defendant went to the restroom. Upon his return, the

defendant grabbed an object and started stabbing her. Officer Lee saw the

victim’s head wound but did not see her body wounds.

After the conclusion of the proof, the jury convicted the defendant of

the lesser-included offense of attempted second degree murder, as well as

aggravated assault and violation of an order of protection as charged in the

indictment.

State v. Michael Martin, No. W2010-00466-CCA-R3-CD, slip op. at 2-4 (Tenn. Crim. App.

Mar. 30, 2011).

At the post-conviction hearing, counsel testified that the primary issue in the

Petitioner’s case was intent. He thought the case was “over indicted” regarding the attempt

to commit first degree murder charge. He said the intent to commit premeditated murder or

to knowingly or intentionally kill someone was not supported by the facts. He said that the

State made a “decent offer” but that the Petitioner rejected it. He discussed the plea offer

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with the Petitioner but could not recall the details. He thought the offer was six to ten years

at thirty percent service for aggravated assault. He said that the Petitioner was on parole in

Arkansas at the time the offenses were committed and that his pleading guilty to the

Tennessee charges would have caused problems for him in Arkansas.

Counsel testified that he met with the Petitioner at the jail and in court before the trial

and sent the Petitioner letters during his representation. He said he obtained the Petitioner’s

medical records from the State. When asked if he considered hiring an expert to determine

if the victim’s wounds were life threatening, he said he did not think any judge would have

permitted it. He said that although the victim testified that she could not determine what the

Petitioner had in his hand at the time of the assault, he did not depose a physician who could

determine the type of weapon used. He said the issue was the Petitioner’s intent, not the

weapon that caused the injuries. He recalled that the assault occurred “for a little bit of time

and then [the Petitioner] ran out the door.” He could not recall if he highlighted this in his

opening statement and closing argument.

Counsel testified that an order of protection containing a factual statement supporting

the basis for the order was effective at the time of the assault. He did not recall if he objected

to the State’s witness reading the factual statement into evidence. He agreed the order of

protection would have been included in the State’s discovery package and said the discovery

package was mailed to the Petitioner on November 7, 2007.

Counsel testified that the victim’s grandparents testified at the trial that they suffered

injuries during the assault on the victim. He recalled Barbara Watson testified that she was

“knocked over.” He said he did not object because she was an eyewitness and was able to

testify about what she saw and what occurred. He said that he learned the testimony was

raised in the appeal of the Petitioner’s conviction and admitted that he did not raise the issue

in the Petitioner’s motion for a new trial.

Counsel testified that the Petitioner gave him three letters from the victim to the

Petitioner that were used at the Petitioner’s insistence to attempt to negate the intent element

of the attempted first degree murder charge. A December 22, 2007 letter stated, “If you

thought I was looking at someone else, I was b---- this, punched, slapped, kicked, spit on, et

cetera, but always there Mike. . . . I fear you. You are dangerous.” A second letter stated,

“And one more request, could you stop calling me b------ and et cetera in front of people.

In the third letter, the victim discussed the Petitioner’s previous ten-year incarceration, his

changing his life when he was released from prison, and his not engaging in criminal activity

after his release. Counselstated that although he understood the Petitioner thought the letters

might show a lack of intent to commit murder, counsel did not want the information in the

letters presented to the jury. He said that although it appeared the victim was apologizing

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and wanted to be in the Petitioner’s life, the letters did not show that the victim lied about the

assault or that the assault did not occur. He agreed the third letter stated, “Please, please,

please give me the chance to show you that I can be the Mrs. Martin that you want.” He

disagreed that the passage negated the required intent and said that it showed the victim still

loved the Petitioner and wanted to reconcile with him and that the victim did not “paint that

picture” of the Petitioner at the trial. He did not want to introduce the letters but attempted

to present the letters because the Petitioner “felt so strongly about it.”

Counsel testified that he could not recall if the Petitioner gave him text message

records of conversations between the Petitioner and the victim. He said, though, he reviewed

them if the Petitioner provided them. He speculated that the text messages were similar in

nature to the letters. He said that if they were similar, the text messages did not establish a

lack of intent and probably would have been excluded as irrelevant.

Counsel testified that he discussed with the Petitioner reducing his bond but that

Arkansas placed a hold on him for violating his parole, which would have prevented the

Petitioner’s release from custody. He agreed he obtained an audio recording of the

preliminary hearing and said he reviewed the victim’s testimony before the post-conviction

hearing. He said that the victim’s preliminary hearing testimony “followed” her trial

testimony and that had her trial testimony contradicted her previoustestimony, he would have

impeached her on that basis. He thought it was significant in the victim’s preliminary

hearing testimony that she was unable to identify the weapon used and said the Petitioner

stopped assaulting her and ran away. He agreed the victim provided similar trial testimony.

Counsel testified that he did not know if the Petitioner requested a transcript of the

preliminary hearing and denied that he had a transcript prepared. He said the audio recording

and his personal notes taken during the hearing were the only records he had of the hearing.

When asked if the Petitioner asked him to present particular witnesses at the trial to explain

“what was going on” between the Petitioner and the victim, counsel stated that the Petitioner,

the victim, and Mr. and Mrs. Watson were present when the assault occurred. He said that

no other witnesses existed and that anything else was irrelevant.

Counsel testified that the State’s theory was that the Petitioner stalked the victim and

that the State used the order of protection violation to show that the Petitioner followed the

victim. He spoke to Gloria Martin, the Petitioner’s mother, Mr. Watson, the victim’s father,

and Andrea Watson, the Petitioner’s stepfather, before the trial. He said that if witnesses

existed who could have testified that the Petitioner did not violate the order of protection, he

would have presented them at the trial. He said that he did not request special jury

instructions and that his focus was on the lesser included offenses, for which the trial court

instructed the jury with “criminal attempt first down to assault.”

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Counsel testified that the Petitioner told him before the trial that he was in a

relationship with Sandra Furlow. He did not recall whether Ms. Furlow could testify about

what occurred on the night of the offenses but said if someone could have testified about

what occurred, he would have presented the person at the trial. He did not recall whether he

emphasized in his closing argument that attempted murder was a specific intent offense.

Counsel testified that the Petitioner’stwo previous convictionsin Arkansas were used

to enhance his sentence. He did not recall if the State submitted a “field report” regarding

one of the previous convictions or if he objected to its admission. He agreed, though, that

the transcript would reflect what occurred at the sentencing hearing. He recalled that one of

the previous convictions involved a crime not defined in Tennessee and that the Petitioner

received 240 months’ incarceration. He said he argued at the sentencing hearing that the

Petitioner was a Range I offender, not Range II. He recalled that this court considered the

offense to be similar to reckless homicide, making the Petitioner a Range II offender.

Counsel testified that the Petitioner did not testify at the trial, that he advised the

Petitioner not to testify, and that he told the Petitioner it was the Petitioner’s decision. He

recalled that the Petitioner’s previous convictions were excluded from the trial because the

trial court found them to be prejudicial and that the court advised the Petitioner of its ruling

during the Momon hearing.

On cross-examination, counsel testified that he had practiced criminal law for eight

years and had tried thirteen to fourteen cases in state and federal courts. He said that he was

assigned to the Petitioner’s case in September 2007 and that the trial was held in July 2009.

He said that during that time, they discussed the case, the theory, the evidence, and counsel’s

opinion that the facts did not support attempt to commit first degree murder. He agreed the

State made a “decent offer” and said he explained the risks and benefits of accepting the

offer. He said the Petitioner knew the risks. He said the Petitioner wanted an assault

conviction “because he [took] care of the Arkansas parole violation.” He understood that the

Petitioner’s parole officer would not file a violation warrant if the Petitioner was convicted

of assault. He recalled the offer was for aggravated assault in the six- to ten-year range.

Counsel testified that the evidence showed the Petitioner was at the victim’s house but

that the Petitioner said he was not there to kill anyone. He said no alibi witnesses existed

who could have placed the Petitioner somewhere else at the time of the offenses.

Upon examination by the trial court, counsel testified that before the trial date, he and

the Petitioner had sufficient time to discuss the Petitioner’s case, the theory, the trial strategy,

and whether the Petitioner wanted to accept a plea offer. He said he answered all the

Petitioner’s questions and had sufficient time to investigate the Petitioner’s case. Regarding

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the theory of the case, counsel said that although the Petitioner did not have an alibi and that

the facts established the Petitioner was at the victim’s house, the Petitioner did not have an

intent to kill the victim. He agreed they discussed the victim’s injuries, the weapon,

abandoning the encounter, and the order of protection.

Appellate counsel testified that he handled the motion for a new trial and the appeal

of the Petitioner’s convictions. He said he raised issues regarding the sufficiency of the

evidence for the attempted second degree murder conviction, prejudicial photographs

introduced at the trial, evidence of the victim’s grandparents’ injuries, a cumulative error

argument, and sentencing. He agreed this court affirmed the judgments of the trial court.

Regarding the Petitioner’s sentence, he said this court concluded that the trial court erred in

classifying one of the previous Arkansas convictions and reclassified the conviction in such

a manner that the Petitioner remained a Range II offender.

Appellate counsel testified that he recalled discussing with the Petitioner the

possibility that fabricated evidence was presented at the trial, that such an allegation was

difficult to prove, and that post-conviction proceedings were the best way to address it. He

did not recall the “field report” presented during the sentencing hearing. Regarding the

sufficiency of the evidence, he said he did not frame the issue as one relating to the State’s

failure to prove the Petitioner’s specific intent. He said that attempted second degree murder

was a result of conduct offense and that the basis for relief was that sufficient provocation

existed to justify an attempted manslaughter conviction. Regarding sentencing, he said he

successfully argued that one of the Arkansas convictions was reckless homicide, not second

degree murder as the trial court found. He said his ultimate goal was to have this court

classify the offense as negligent homicide. He denied that had the “offense report been

correct or different,” the outcome of the appeal would have been different because a statutory

element analysis comparing his Arkansas convictions with Tennessee offenses wasinvolved.

He agreed this court mentioned the Petitioner’s discharging the weapon into a crowded park.

Appellate counsel testified that the transcript of the motion for a new trial hearing was

inadvertently excluded from the appellate record. He agreed that this court waived the issue

for failure to object at the trial and for failure to include in the appellate record the transcript

of the hearing on the motion for a new trial. He agreed that in any event, this court

concluded that no prejudice existed because the Petitioner did not deliberately engage in the

conduct but rather accidentally “bumped into them.” The motion for a new trial transcript

was received as an exhibit.

On cross-examination, appellate counsel testified that he received the transcripts and

the pretrial and post-trial motions in preparing an appellate brief. He said that although it

might have been nice to raise every potential issue, he raised the best issues to maintain a

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level of credibility. He did not raise issues without merit. He said he thought the sentence

within the range was proper but chose to challenge the sentencing range.

Upon examination by the trial court, appellate counsel testified that he visited the

Petitioner at the jail to discuss the motion for a new trial hearing and that after the hearing,

he communicated with the Petitioner by mail and by telephone. He agreed he had ample

opportunity to discuss with the Petitioner the appellate brief and the issues he intended to

raise. He did not recall any specific issue that the Petitioner wanted raised in the appeal and

agreed the Petitioner was aware of the issues he planned to raise.

Gloria Watson, the Petitioner’s mother, testified that she attended the Petitioner’s

court appearances and that she spoke to counsel about the case. She said counsel did not ask

her if she had information about which she wanted to testify or if she was knowledgeable

about the Petitioner and the victim’s relationship. She said their relationship was good based

on her observation of the couple at family functions. She denied knowing of any problems

between the couple at the time of the offenses but said that the Petitioner required the victim

to leave their house and that they had “some disagreements or whatever.” She denied

knowing why the victim left.

Ms. Watson testified that she learned the Petitioner wanted a divorce but that the

victim would not consent. She denied knowing why the Petitioner wanted a divorce. She

knew the victim’s grandparents but denied talking to them about the Petitioner and the

victim’s relationship or the Petitioner’s desire for a divorce. She denied witnessing the

events leading to the Petitioner’s arrest.

On cross-examination, Ms. Watson testified thatshe did not volunteer any information

about the Petitioner and the victim’s relationship because counsel said any information she

had was irrelevant due to the text messages and letters. She denied knowing what occurred

between the Petitioner and the victim the night the offenses were committed.

Upon examination by the trial court, Ms. Watson testified that she possessed letters

and text messages from the victim to the Petitioner. When asked if she gave them to counsel,

she said counsel told her he did not need them. She identified the letters previously received

as a collective exhibit as the letters she attempted to give counsel. She denied reading them

and said the Petitioner asked her to give them to counsel. She said that text messages

between the Petitioner and the victim were on the Petitioner’s cell phone and that she typed

each message. She said that she told counsel about the text messages but that he thought they

were not important. She agreed she did not know what occurred between the Petitioner and

the victim when she was not around them.

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Ms. Watson testified that the incident in which the Petitioner “put out” the victim

occurred in 2006 but could not recall the specific time of year. She said that she did not pry

into the Petitioner’s and victim’s lives but that the victim mentioned divorce once.

Walter Joyce, the Petitioner’s brother, testified that he spoke to counsel about the

Petitioner’s case and that counsel was supposed to call him as a witness at the trial and at the

sentencing hearing but did not. He said he knew the victim well and considered her to be

“very jealous hearted.” He said that when the Petitioner wanted to do something with him,

the victim did not want the Petitioner to go. He said he witnessed the victim’s chasing the

Petitioner through the house with a butcher knife. He said the victim initiated the violence,

which occurred about one year before the Petitioner’s arrest. He denied witnessing the

incident at the victim’s grandparents’ house.

Mr. Joyce testified that he knew the Petitioner wanted a divorce and was dating

Sandra Furlow at the time of the offense. He said that at that time, the victim continuously

called the Petitioner and broke into the Petitioner’s house. He recalled one incident when the

victim asked the Petitioner to bring her license plate to her grandparents’ house. He said that

when the Petitioner arrived, men were there who tried “to do something” to the Petitioner.

He said the victim could not handle the Petitioner’s dating another woman and ending their

relationship. He said that he attempted to provide counsel these facts but that counsel did not

seem concerned about it. Although he could not recall if he was subpoenaed for the trial, he

was present every day of the trial.

On cross-examination, Mr. Joyce testified that he lived with the Petitioner and the

victim for about six months. He agreed it was possible that he did not know everything that

occurred between the couple. He denied scheduling a meeting to talk to counsel or writing

him a letter but said he attempted to talk to counsel every time he saw counsel.

Andrea Watson, Sr., the Petitioner’s stepfather, testified that he had known the

Petitioner since 2002. He said he met counsel once or twice. He said the victim was his

cousin. He said that before the offense, he did not “hang out” with the victim because she

had “never been right” and that the victim did not treat people right. He denied that counsel

asked him if he had any information that would help the Petitioner’s case and said that he

was not present during the offense. He knew the Petitioner wanted a divorce but denied

knowing why he wanted it. He denied witnessing any violence between the Petitioner and

the victim. He stated that although the Petitioner was incarcerated for attempting to kill the

victim, she refused to sign the divorce papers.

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The Petitioner testified that over the course of counsel’s representation, he asked

counsel to challenge the indictment because it did not allege an overt act and was not signed

by the prosecutor. He said he asked counsel to challenge several pretrial issues and asked

counsel to raise several issues on appeal. He said that the State’s discovery package was

incomplete and that he asked counsel why the victim’s criminal history was missing. He

knew the victim was previously convicted of theft and forgery and thought those convictions

could be used to show the victim’s dishonesty. He asked counsel for medical records

regarding the victim’s injuries because he contended the victim was cut by keys, not by a

knife. He said the preliminary hearing transcript and his previous criminal history were also

missing from the discovery package. He said counsel told him that the burden of proof was

on the State and that the Petitioner did not have to present any evidence.

The Petitioner testified that pages of the order of protection were missing from the

discovery package and that the missing information related to the narrative of facts

underlying the order. He said that the information was damaging and that had he known the

information, he would have pleaded guilty.

The Petitioner testified that counsel did not discussthe defense theory and that counsel

said, “[Y]ou really don’t have to offer a defense so don’t worry about that.” He asked

counsel to talk to his mother, brother, Ms. Furlow and her daughter, Polly Rogers, and his

realtor, Connie. He said he wanted counsel to talk to Connie because he asked Connie not

to disclose his address to the victim, although the victim ultimately learned his new address.

Regarding the defense theory, he wanted counsel to stress that he only had keys in his

possession and that the victim’s injuries were not inflicted intentionally. He wanted the

jurors to understand that he did not go to the victim’s grandparents’ house for a confrontation

but rather to ask Mr. Watson to assist him in getting the victim to agree to a divorce. He said

that he did not show up unannounced and that Mr. Watson gave him permission to come to

their house. He denied knowing the victim was there.

The Petitioner testified that he did not testify at the trial and that counsel advised him

not to testify, although counsel did not explain why. He said counsel remained adamant

about his not testifying after the trial court excluded his previous convictions. He said,

though, he wanted to explain his version of the events. He said he knew it was his decision

to testify but trusted counsel and accepted his advice.

The Petitioner testified that he talked to appellate counsel a couple of times and that

he provided appellate counsel “a complete package” after the sentencing hearing. He said

he provided counsel a handwritten list of the issues he wanted raised on appeal, which was

received as an exhibit. He said counsel did not respond. He wrote counsel later, although

he could not recall when, regarding the disparate treatment between male and female

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defendants and asked counsel for a “Baldus study” focusing on the topic. He believed male

defendantsreceived harsher treatment than female defendants. He received no response from

counsel.

On cross-examination, the Petitioner testified that he did not have proof showing

counsel withheld discovery information intentionally but that he did not receive all the

documents. He also did not have proof showing that the alleged missing documents were

provided to counsel in the State’s discovery package. He agreed he testified before the trial

court and stated that he had chosen not to testify at the trial. He agreed counsel stated on the

record that he advised him not to testify but that it was the Petitioner’s decision. He decided

not to testify before the court excluded the letters.

The Petitioner testified that the people he wanted counsel to call as witnesses would

have testified about the status of his and the victim’s relationship, namely that he wanted a

divorce. He said the witnesses would have negated the State’s theory that he stalked the

victim.

Regarding the handwritten list of issues previously received as an exhibit, the

Petitioner testified that he knew every issue could not have been raised in the appeal but that

he wrote them down because counsel continuously told him it was not the time to address his

issues. He denied that appellate counsel told him that he chose the strongest issues to raise

in the appeal. He said he allowed appellate counsel to “do his thing” because he was a wellrespected attorney. He thought appellate counsel would do the “right thing” after learning

he was the victim of an injustice.

The trial court found that counsel did not provide ineffective assistance and denied

relief. The Petitioner raised in his petition for post-conviction relief twenty issues regarding

the ineffective assistance of counsel. We address only those raised on appeal.

Regarding the Petitioner’s contention that counsel was ineffective for failing to

interview and present Walter Joyce at the trial, the trial court found that it was “not always

in the best interest of the defendant to call every witness who can be called.” The court

found that although “certain witnesses” may have corroborated the Petitioner’s theory of the

case, the witnesses’ credibility “could have been severely damaged” on cross-examination.

The court found that the decision to present witnesses was strategic and that the court would

not second guess counsel’s tactical and strategic decisions. The court found that the

Petitioner was not prejudiced by the “exclusion” of the witnesses.

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Regarding the Petitioner’s contention that counsel wasineffective for failing to object

contemporaneously to the narrative portion of the order of protection being read into

evidence, the trial court found that he failed to show how counsel was deficient. After

reviewing the trial transcript, the court found that counsel made several arguments to

suppress the order of protection, although he did not cite to any numerical rule of evidence.

The court found that this did not fall below the objective standard of reasonableness and that

counsel’s argument before the court was not deficient.

Regarding the Petitioner’s contention that appellate counsel wasineffective for failing

to include the transcript of the hearing on the motion for a new trial in the appellate record,

the trial court found that counsel did not include the transcript. It noted that although this

court concluded that the issue of the victim’s grandparents’ injuries was waived due to

counsel’s failure to object at the trial and appellate counsel’s failure to include the transcript

in the record, this court found no prejudice existed. The trial court agreed and found that had

the issue not been waived on appeal, the Petitioner would not have received relief because

it was not alleged that the Petitioner intentionally caused the grandparents’ injuries. The

court stated that because it found no prejudice in failing to include the transcript, it need not

address whether counsel provided deficient performance on appeal. This appeal followed.

The burden in a post-conviction proceeding is on the petitioner to prove his grounds

for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we

are bound by the trial court’s findings of fact unless we conclude that the evidence in the

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.

2001). Because they relate to mixed questions of law and fact, we review the trial court’s

conclusions as to whether counsel’s performance was deficient and whether that deficiency

was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.

Post-conviction relief may only be given if a conviction or sentence is void or voidable

because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is

made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient

and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687

(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing

that counsel’s performance fell below a reasonable standard is not enough because the

Petitioner must also show that but for the substandard performance, there is “a reasonable

probability that . . . the result of the proceeding would have been different.” Strickland, 466

U.S. at 694. The Strickland standard has been applied to the right to counsel under article

I, section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.

1989).

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A petitioner will only prevail on a claim of ineffective assistance of counsel after

satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.

1997). The performance prong requires a petitioner raising a claim of ineffectiveness to

show that counsel’s representation fell below an objective standard of reasonableness or

“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

The prejudice prong requires a petitioner to demonstrate that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. A reasonable probability means a “probability sufficient

to undermine confidence in the outcome.” Id.

I

The Petitioner contends that he received the ineffective assistance of counsel because

counsel failed to interview and present Walter Joyce as a witness at the trial. He argues that

Mr. Joyce’s testimony regarding the victim’s previous violent conduct toward the Petitioner

and the abusive nature of her relationship with the Petitioner would have negated the intent

element of attempted murder. The State contends that counsel was not ineffective because

Mr. Joyce was not present during the offenses and could not have testified about what

occurred. We agree with the State.

Counsel’s chosen defense theory was that although the Petitioner was present at the

time of the attack, the Petitioner did not have the intent to kill the victim. The record shows

that before the trial, counsel spoke with the Petitioner’s mother, the victim’s father, and the

victim’s brother. Although counsel did not recall talking to Mr. Joyce before the trial, Mr.

Joyce testified at the post-conviction hearing that he and counsel spoke before the trial.

Although Mr. Joyce thought he would be called as a witness at the trial, he admitted he was

not present at the time of the attack. Mr. Joyce could not provide an alibi by placing the

Petitioner somewhere other than at the location of the attack. We note that Mr. Joyce wanted

to testify about the turbulent nature of the victim and the Petitioner’s relationship and the

victim’s initiating violence at times. Although the victim might have initiated violence

against the Petitioner at times during their relationship, no evidence exists or was presented

at the trial showing that the victim initiated violence when the offenses were committed. The

victim’s grandparents were the only witnesses to the offenses, and they did not testify that

the victim initiated the attack. We cannot conclude that counsel was deficient by failing to

call Mr. Joyce as a witness or that the Petitioner was prejudiced. He is not entitled to relief

on this basis.

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II

The Petitioner contends that he received ineffective assistance because counsel failed

to object contemporaneously to the narrative portion of the order of protection being entered

into evidence at the trial. He argues that the evidence was irrelevant and testimonial hearsay.

The State responds that the factual basis for the order of protection was relevant because the

jury was asked to determine whether the Petitioner violated the order. The State does not

address whether the order was inadmissible testimonial hearsay. We conclude that the

Petitioner is not entitled to relief.

Regarding the Petitioner’s contention that counsel was ineffective for failing to object

contemporaneously to the narrative portion of the order of protection, the trial court found

that he failed to show how counsel was deficient. After reviewing the trial transcript, the

court found that counsel made several arguments to suppress the order of protection,

although he did not cite to any numerical rule of evidence. The court found that counsel’s

arguments were not deficient.

The record shows that at the trial, Michael Triplett, custodian of the records for the

Shelby County General Sessions Court, testified that the victim petitioned the court for an

order of protection on December 29, 2006. An ex parte order was obtained on January 2,

2007, and a hearing was held on January 16. An agreed order was entered on January 16,

prohibiting the Petitioner from contacting the victim and from possessing a firearm or

ammunition for one year.

Mr. Triplett read the factual basis for the petition, which stated,

On or about December 25th, 2006, Michael Martin, the victim’sspouse,

picked her up from a friend’s home and accused her of cheating and did

physically assault her. The victim states that Michael Martin hit her in the face

with a closed fist; hit her in the nose, which caused her nose to spread and eyes

to blacken. The victim further states that Michael Martin stuck his fingers

under her tongue threw her across the floor while . . . making threats such as

‘the police can’t stop me from getting to you. I’ll get to you – get to the ones

you love.’ If he gets locked up, he will be plotting on how he is going to get

her.

The victim states that Michael Martin had assaulted her on prior

occasions specifically on December 13th of 2006 in which he hit her in the

head twice with a gun and caused the left side of her head to bleed. A report

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was filed on December 20th, 2006 in reference to this at the Hickory Hill

precinct.

On cross-examination, Mr. Triplett testified that he was not present in court when the

agreed order of protection was entered and denied witnessing the victim and the Petitioner

sign the agreed order. Mr. Triplett read from the petition that the victim “has been subject

to threatened with or placed in fear of abuse, domestic abuse, stalking or sexual assault by

respondent.” He agreed no police report from the Hickory Hill precinct was attached to the

petition and said the ex parte petition was not a finding of guilt. He said the agreed order

showed that no testimony was given and that the Petitioner made no admissions of

wrongdoing.

A jury-out hearing was held prior to Mr. Triplett’s testimony to determine the

admissibility of the narrative. Counsel argued that although the order of protection itself was

relevant to whether the Petitioner violated the order, the victim offered no testimony at the

hearing, and the Petitioner made no admissions. He agreed the victim and the Petitioner

“signed off” on the order. Counsel said the problem with the order was “all this other stuff

that is attached to it.” He objected to the admission of the Petitioner’sthreatening statements,

abusive language, and conduct occurring over an eighteen-month period before the order was

obtained. He denied that the statements showed the Petitioner’s intent on the night the

offenses were committed. Counsel argued that even if the material was relevant, the

prejudicial value “totally weigh[ed] any probative value.”

The prosecutor argued that the material corroborated the victim’stestimony regarding

the nature of her relationship with the Petitioner and that it showed the Petitioner’s motive

for his committing the offenses. She noted that evidence of the Petitioner’s assaulting and

threatening the victim and her reasons for leaving the Petitioner were presented to the jury

through the victim’s testimony. She also argued that the victim testified that she continued

to be romantically involved with the Petitioner after the order was obtained and that it was

not until the victim ended her relationship with the Petitioner that the offenses occurred. She

said the victim’s ending contact with the Petitioner might have been the Petitioner’s motive

for the attack.

The trial court found that the victim testified at the trial that her relationship with the

Petitioner was abusive, that she left the Petitioner in 2006, that they continued to see each

other on occasion, that she obtained an order of protection in 2007, and that she continued

to see the Petitioner until the time the offenses occurred. The court found that counsel asked

the victim on cross-examination, “[Y]ou weren’t really afraid of him, were you?” The court

found that counsel attempted to show that the order of protection was meaningless based on

the victim’s continued interaction with the Petitioner.

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Counsel responded that allowing the narrative into evidence was tantamount to

permitting the State to introduce evidence of a previous conviction. He argued that although

he would be permitted to cross-examine the custodian of the records, the custodian did not

know everything about the order or the victim and Petitioner’s relationship. Counsel

admitted that the order was proof that an agreed order existed but that no proof existed

showing the allegations contained in the order were true.

The trial court found clear and convincing proof based on the victim’s trial testimony

that the allegations in the petition for the order of protection occurred. The court found that

the order corroborated the victim’s trial testimony regarding the nature of her relationship

with the Petitioner and why she wanted to end the relationship. The trial judge stated, “I

don’t think it’s anything that would be so outrageous or so prejudicial for the jury to hear that

it would really swing this case.” The court found that the order was relevant to show the

Petitioner’s intent on the night the offenses were committed. The court found that the

probative value outweighed the danger of unfair prejudice.

The record shows that counsel objected to the admission of the narrative portion of

the order of protection on the ground that it was irrelevant for determining whether the

Petitioner violated the order of protection. See Tenn. R. Evid. 402. Likewise, counsel

argued that even if the trial court found that the narrative was relevant, the probative value

was substantially outweighed by the danger of unfair prejudice. See id. 403. Counsel feared

that although the Petitioner made no admissions regarding the allegations underlying the

order and no testimony was presented at the hearing, the jurors would find that the Petitioner

committed the alleged acts. In essence, counsel further argued that admission of the narrative

violated the prohibition of evidence to prove action in conformity. See id. 404(b).

Thereafter, the trial court made the appropriate findings pursuant to Rule 404(b)(1)-(4).

The record shows, though, that counsel did not argue at the trial that admission of the

narrative was testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36, 68

(2004). In Crawford, the Supreme Court concluded that the standard for the admissibility

of hearsay statements under the Confrontation Clause is that “testimonial” hearsay is

admissible when the declarant is unavailable and there was a “prior opportunity for crossexamination.” At the jury-out hearing, the State argued that the narrative was not offered

to show that the Petitioner committed the acts alleged by the victim in the narrative but rather

was used to show the nature of the victim and Petitioner’s relationship before the offenses

were committed and to show a potential motive for the Petitioner’s conduct. By using the

narrative to establish the nature of the relationship and the possible motive, the narrative must

be viewed as substantive evidence. As a result, the narrative contained hearsay evidence.

See Tenn. R. Evid. 801(c) (Hearsay is “a statement, other than one made by the declarant

while testifying at the . . . hearing, offered in evidence to prove the truth of the matter

-17-
asserted.”).

At the hearing on the petition for an order of protection, no evidence was presented,

and no testimony was provided by the victim or the Petitioner. The Petitioner was not

afforded an opportunity to cross-examine the victim at the hearing regarding her allegations

in the narrative. The Petitioner, though, was afforded the opportunity to cross-examine the

victim at the trial. The United States Supreme Court stated in Crawford that “when the

declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of [her] prior testimonial statements.” Crawford, 541 U.S. at 59

n.9. Likewise, the Court stated that the Confrontation Clause “does not bar admission of a

statement so long as the declarant is present at trial to defend or explain it.” Id. Our supreme

court interpreted article 1, section 9 of the Tennessee Constitution in the same fashion. See

State v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008) (concluding that article I, section 9 of the

Tennessee Constitution does not require a different result than Crawford). The victim

testified at the trial and was cross-examined by the Petitioner. Although the victim was not

questioned regarding the hearsay evidence contained in the narrative, nothing prevented the

Petitioner from questioning her about it. As a result, we cannot conclude that counsel was

deficient by failing to object to the narrative on the ground that it violated the Confrontation

Clause. The Petitioner is not entitled to relief on this basis.

III

The Petitioner contends that appellate counsel was ineffective because he failed to

include the transcript of the hearing on the motion for a new trial in the appellate record. He

argues that evidence of the victim’s grandparents’ injuries sustained during the offenses was

irrelevant and prejudicial and caused the jurors to “dislike” the Petitioner. He argues that

because counsel failed to include the transcript in the appellate record, this court concluded

the issue was waived and that this court would have granted a new trial had the transcript

been included. The State contends that although the transcript was not included in the

appellate record and that this court concluded the issue was waived, this court also concluded

that the Petitioner was not prejudiced by the grandparents’ testimony. We agree with the

State.

In the appeal of the conviction, the Petitioner argued that the trial court erred by

allowing evidence of the victim’s grandparents’ injuries sustained during the commission of

the offenses. This court noted that the Petitioner waived the issue because he failed to object

contemporaneously at the trial. See T.R.A.P. 36(a). This court summarized the trial court

proceeding relevant to the grandparent’s injuries.

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During a jury-out hearing regarding the admissibility of the order of

protection the victim obtained against the defendant, the defendant also

objected to the admissibility of photographs of the victim’s grandparents

depicting injuries allegedly sustained during the altercation. The defendant

argued that the photographs were not relevant because the indictments were

all regarding injuries to the victim and, even if relevant, the probative value

was outweighed by the prejudicial effect. The trial court reserved ruling on the

issue until the grandparents testified.

Later, Barbara Watson testified that she fell over a chair when she

jumped up to help the victim and sustained a bruise on her arm. James Watson

testified that he got up to help Mrs. Watson, but the defendant’s “boot or

something” pressed against his leg and he fell. The State did not attempt to

introduce the photographs of Mr. and Mrs. Watson’s injuries, and the only

objection by the defense came when the prosecutor asked Mr. Watson if the

defendant pressed his boot against Mr. Watson’s leg on purpose. Before the

trial court ruled on the objection, Mr. Watson stated, “[I]t was not on purpose.”

Michael Martin, slip op. at 6.

This court noted that the Petitioner failed to object during the testimony, as the

objection during the jury-out hearing was related to the photographs of the injuries.

Likewise, this court concluded that although the issue was raised in the amended motion for

a new trial, the transcript from the hearing was not included in the appellate record and that

the issue was waived. This court also concluded, though, that “even if not waived, we do not

see how the defendant was prejudiced by the grandparents’ testimony because it was not

alleged that the defendant purposefully caused their injuries.” Id.

At the post-conviction hearing, appellate counsel admitted that the transcript of the

hearing on the motion for a new trial was inadvertently excluded from the appellate record.

Although we conclude that appellate counsel failed to prepare an adequate record on appeal

and that counsel failed to object contemporaneously to the testimony regarding the

grandparents’ injuries, the Petitioner has failed to establish prejudice. The Petitioner was

charged with attempted first degree murder and aggravated assault of the victim, not the

victim’s grandparents. The testimony regarding their injuries was brief, and Mr. Watson

testified that the injuries were not inflicted intentionally.

We note that the proof of the Petitioner’s guilt was overwhelming. The victim

testified that the Petitioner called her several times on the night of the offenses, that he

threatened he could get to her if he wanted, and that he thought she was having an affair.

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The victim noticed a “suspicious car following” her that night, and when she arrived home,

the Petitioner began calling her repeatedly. The Petitioner arrived at the victim’s

grandparents’ house around midnight, grabbed the victim and “went to sticking [her].” The

Petitioner was known to carry a three- or four-inch pocketknife, and the victim realized after

the attack that she had been stabbed in her left breast, left side, and toward the top of her

head. The victim stated that the Petitioner called her the next day to apologize for his

conduct. We conclude that the Petitioner failed to show that a reasonable probability exists

that the result of the trial would have been different had the testimony regarding the

grandparents’ injuries been excluded. He is not entitled to relief on this basis.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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